The question is how the decision was justified. The main arguments enumerated in the decision of the higher administrative court are as follows: the freedom of assembly according to Art. 8 (1) of the German Constitution gives Germans the right to assemble peacefully. Accordingly, (2) outdoor assemblies can be restricted. Article 15 I of the assembly law (VersG) functioned as the basis for the limitation of video screen use, whereby a legal restraint can be ordered by the authority if there is a likelihood of a risk of danger to public safety or public order during a demonstration. According to the court, a live-streamed speech of President Erdoğan would emotionalize demonstrators in such a way that an aggressive mood could develop in the crowds. Due to this potential negative response, felonies by the demonstrators were predicted by the court. Additionally, they purported that oppositional demonstrating groups would be antagonized by the live stream, which would result in a series of criminal altercations between the opposing groups.

It is obvious that this type of reasoning contains many problems. Firstly, as Professor Nils Schacks pointed out on Verfassungsblog.de, the minimal requirements for a concrete danger in the context of article 15 I VersG were not met: the danger of social misconduct had to be predicted ex ante when the court decision was made. The reality was that there were no concrete indications of criminal behaviour by the demonstrators. Furthermore, if other protesting groups were to interfere with the demonstration, this would imply a criminal threat to the demonstrators that would then necessitate police intervention to provide security for the event. Ex post, the demonstration in Cologne took place peacefully, even though many more people attended than initially expected.

In fact, previous speeches by President Erdoğan in person in Germany had never resulted in civil disorder. Additionally, as legal analyst Christian Rath of Die Tageszeitung stated, the freedom of assembly in Article 8 of the German Constitution includes the right of the demonstrators to appoint the speaker(s) for the gathering. Other opinions focused primarily on the persona of Erdoğan rather than the actual right to choose the speakers for the demonstration. In this regard, Heribert Prantl of Süddeutsche Zeitung incorrectly stated that it was not possible to compare Erdoğan’s live broadcast to the Pope. However, if the speaker was the main criterion for a public broadcast, it should be legally impossible to justify how, in 2011, a significant functionary of the terrorist organization PKK was allowed to be live streamed in a football stadium in Cologne from Iraq. This is a clear violation of the right and principle of equality according to Art. 3 (1) of German Constitution. Furthermore, within the spirit of Art. 8 I of the constitution, this view is surprising, as it is a classically broad constitutional right, which even gives Nazis the right to march and demonstrate.

But perhaps the most important assumption made by German officials regarding the demonstration in Cologne, aside from the purely legal viewpoint, was that it was portrayed as a simple “pro-Erdogan” event in many media reports. The demonstration was a clear message from the supporters of Turkish democracy; however, the repercussions were even worse as hysteria dominated the political debate on Turks supporting this event. Currently, the already limited dual citizenship for Turks is so seriously doubted and discussed in the measures of an “Anti-Terror-Catalogue” that one option is to cancel it. Finally, it has to be pointed out that a speech by a supreme Turkish authority could have been interpreted as a strong and symbolic behaviour for representative democracy. This has to be considered through the lens of traditional civil rights in which public communication is constitutive for a free democratic order.

Coming to the other part of your question as to why there is a more critical view on the Turkish government: simply, the reason is mainly that Turkey has become more independent, more powerful and more incisive.

With regard to the religious or conservative values of the Turkish people, I think, yes, this is very important: one should not forget that everything that president Erdoğan did when he was a prime minister was on the basis of the secular constitution from 1982. Even though, Erdoğan is very unfairly portrayed as a “Sultan” or an “Islamist,” he clearly followed secular politics. There is neither an Islamic constitution in Turkey nor even is it likely one will come soon. So the constant mentioning of Islam and of the Muslim identity of the Turkish people does not reflect the true course of things. Commentators and journalists in Germany should know this fact well but just prefer to ignore it. I definitely agree with you that for a section of our media landscape there is a radicalization and polarization.

So, do you think the reason behind negative attitude is bad journalism or deliberate manipulation? Are we talking about ideologically charged and detached quarters, commentators or journalists?

I think we have both. We have definitely a dissolving and a lowering of journalist professional standards and equally an economic pressure in the production of media. This is definitely one reason and I think this an important one. But not all media is under financial pressure. Money is not always the chief reason. It also has something to do with the domestic politics of Germany as well as with ideological motives. There are ideologically driven people who color or taint the coverage of Turkish issues in accordance with their ideology. That is definitely true.

I think when people write about Turkey, they are actually writing about themselves.

I might be wrong but I think that when people write about Turkey, they are actually writing about themselves. You know the famous legal axiom that “the enemy is one owns’ question as ‘Gestalt’”. That means, when we deal with issues regarding Turkish politics, we put Islam and Muslims into the same package. Of course, these questions are not irrelevant for European and German identity. Since German society is in an identity crisis, it is easier to deal with this crises by reflecting it on the other.

And yes, we have ideologically charged and entangled writers, commentators and journalists. I don’t want to list them one by one, but we certainly have them. They have been to Turkey, they wrote and commented about it. Reasons and intentions are mixed. Some of those people come from the former conservative right. Maybe the background of their negative handling of Turkey is also related to the issue pertaining to Islam, to Muslims, to immigration. So it is a kind of proxy war. You see? We have people, who come from a left wing background. For them it is easier to relate the issue to “international solidarity” and supposed “human rights.” We should also keep in mind that some people just report what you perceive negative or critical because that is the truth as they perceive it.

When it comes to making news about foreign countries, do you think German media prefers to act in unison with the German government? Or how frequently do they diverge? As far as I remember there were plenty of negative news and comments about the Iranian government when economic sanctions were applied to Iran just couple of years ago. It was a habit, in this regard, to lift up the voices of Iranian opposition vis-à-vis the Iranian government officials. But now Germany is trying to establish a good relationship with the Iranian government and German officials and private companies are signing economic agreements during their visits to Iran. Did the perspective of the German mainstream media changed accordingly with the change of the government policy towards Iran? And importantly, can you compare reflections of the former Iranian and current Turkish cases on German mainstream media?

That might have been the case in the fifties and sixties when we still had remnants of old German authoritarianism in the German society during the post war period. But nowadays, I don’t see it. I think it is rather the other way around. I think rather the politicians are interested in finding a public mood. To find it, they go to the media. And they diverge quite often. German media has its blind spots.

We all know the situation in Turkey over the past decade. I cannot remember in the nineties and eighties that the issue of human rights or even the issues of Kurdish minority was a big subject for the German policy, not at all. They didn’t care about it. Turkey was a NATO member, Turkey was a foreign state, Turkey was important for defense of the southern NATO front and we didn’t care about the rest. I find it quite hypocritical that suddenly they are interested in human rights in Turkey. It is very hypocritical.

Now suddenly the Saudis are becoming the bad guys. Two or three years ago, Saudi Arabia was the best friend but suddenly they’re vilified.

You’re giving the Iranian example. It is actually a very interesting one. I realize when I speak to people from the region that the change of the perception of Iran is not something exclusively German. This process is initiated by American foreign policy. The Obama government pushed the lifting of sanctions. They want to draw back from the Gulf. They want to engage now their limited forces in East Asia. The Americans accepted Iran as being a limited hegemon in the Persian Gulf region and this is an overall Western thing and nowadays I think with some unjustification, now suddenly the Saudis are becoming the bad guys. Two or three years ago, Saudi Arabia was the best friend but suddenly they’re vilified.

I think the case is more representative. Let’s say for modern media or western media, then of international media because that’s actually the position of the Russian and Chinese media too. That would be my comment of it. But also it does not necessarily mean that they embrace Iran or the Iranian policy. They just shift their positions in a way so Teheran could be a partner of interest because Iran is a big market. Some people say that it could become the biggest steel producer in the world. Everybody is waiting that the doors are opening so they can invest and make a lot of money while the Saudi market is saturated and also the Saudis now announce a reform program that they want to produce more and more of their own stuff.

After the nuclear deal, Germany was one of the first countries to sign economic agreements with Iran, which shows where their concerns lie. Right?

Ethical foreign policy only applies to weak governments. Our president, for example, was in Myanmar and didn’t mention the treatment of the Muslim minority in Myanmar with a single word.

It’s one of the arguments to show that the so called ethical foreign policy which was initiated by Joschka Fischer only applies to weak governments. You cannot or do not apply it to places like China, or to any country where you have strategic and economic interests. I mean for example the behavior of the German foreign policy towards Uzbekistan, which is a dreadful government. It is a case in point. Or Myanmar, our president was in Myanmar and didn’t mention the treatment of the Muslim minority in Myanmar with a single word. The German foreign, let’s say, the human rights oriented German foreign policy is quite selective.

There is a recent debate on the Böhmermann affair and this happened after you submitted your very article about the same subject for Insight Turkey. Would you like to comment on that? None talked about what he said. Do you think the press freedom can be debated separately from the content of the news itself?

This case needs a bit of clear thinking. Let’s take politics and diplomacy out and try to consider the issue only from a legal perspective. The offended party is the Turkish president Tayyip Erdoğan. According to law he has the right to go to trial himself. None can do it for him. I think the president has very good cause and reason to do it. And that’s it. I think that would have been the best situation. I don’t want to comment on the content of what he said. Because it leads to a kind of interpretation. Some people say no, it was just a media comment. Imagine what would happen, if the same thing would have happened with Benyamin Netanyahu!

Imagine what would happen, if the Böhmermann affair would have happened with Benyamin Netanyahu!

In Germany, normally – except some rare cases – politicians don’t go to trial with satirists. Helmut Kohl, for instance, had a lot of enemies and for sixteen years he was viciously attacked. But he never put someone to trial. Bringing the issue to the court was an option as much as keeping silent. Because what these satirists cannot stand is silence. You just don’t mention or comment on them. Just silence. Alternatively it would have also been an option to bring issue to the court and then remain silent. No statements to press, no comment, just say – this is a legal case. In German inner politics it would have functioned like this.

Do you think press freedom can be debated separately from the content of the news?

I am very much in favor of press freedom. But I like to see strong libel laws. It’s basically the old British model that they had for more than a century or two. They have total press freedom, but they also have libel laws, which means if a person was libeled s/he could go to court with quite tough sanctions like money and prison sentences. On the other hand, if we do not separate it, then the law could become subjective. Then one can make rules arbitrarily. This is a dangerous road. I am speaking as a German Muslim, because there are attempts to silence us and to limit our freedom of speech. And I don’t want my freedom of speech limited. So I have to give the same freedom to the opponent. In Germany, when Muslims speak freely, they are not put on to trial, but there is a media campaign against them. But there is nothing to do against such media campaigns. I think it is good as it is. One can and should stand it.

And how about the question from where one has to draw limit or how to limit power of journalist?

We really wish financially powerful Individuals or companies in the Muslim world like Turkey or Malaysia would invest in genuine European Muslim projects.

In Europe, there are certain tendencies in the legal system. For example, there were, as far as I know, between seventeen and twenty cases who went to the European court in Strasbourg concerning the competing rights of religious and press freedom. And in every case, press and media freedom won. This is almost a tradition. Even if the lower echelons of the law might give you positive decisions, the upper one will not. Because that is how it is. I think at the end, the only way to do it is by hard work – and by good PR work. Even by buying a newspaper. There are some newspapers on sale in Germany. Buy a newspaper and turn it slowly into the direction you want! That is a legitimate thing. There is nothing illegal. Just make your own media presence. We really wish financially powerful Individuals or companies in the Muslim world like Turkey or Malaysia would realize this and invest seriously in genuine European Muslim projects.

And coming to our last question, what is your prospect for future where the position of “oppositional” German media is in sharp contrast to Turkish government or critical and revisionist outlook is predominating?

It depends on certain issues like the outcome of the Syrian refugee crises or the handling of the EU-Turkish accord. How it is handled, how it is dealt with, how it is practiced. I think Turkey is successful. And success is itself always a good argument. If the economic policies continue and the numbers remain positive, the Turkish government can make the use of it.

When people speak about the government of president Erdogan, they never mention his quite successful fight against inflation, which is the biggest killer of the small people, of the poor.

Say whatever you think about us, in fourteen years Ankara created a far more adjusted society compared to the decades before of corruption and mistreatment of resources and politics, and inflation.

I mean one interesting thing is, when people speak about the government of president Erdogan, and then prime minister, they never mention his quite successful fight against inflation, which is the biggest killer of the small people, of the poor. Likewise, they won’t mention a large chunk of the foreign debts, which is in fact a huge success and should be promoted for a greater public. I mean look where Turkey is and where Greece is. You have to understand that media is not a global vending machine, where you go and want something. If you want something, you need to get it done yourself.

The dilemma begins when the rights, or values, of two individuals clash with each other.

The most recent major cause célèbre on the subject occurred in Germany in March 2016, and can be found in legal texts such as Erdoğan vs. Böhmermann. The German comedian Jan Böhmermann used his television show to demonstrate the extents, and test the limits of free speech in Germany by giving a practical example in the form of a poem. This poem was called Schmähkritik (abusive criticism), which is a legal concept by the German Constitutional Court and will be defined later, and contained 24 lines that were filled with profanities and, more importantly, Islamophobic and anti-Turkish stereotypes targeting the President of Turkey.

Before the broadcast, Böhmermann demanded that the Turkish flag be displayed as his background, and that his reading of the poem be accompanied by a German instrumental song which was substantiated by oriental rhythms. Combined, these two elements were intended to ensure that Recep Tayyip Erdoğan knew that this poem was intended for him. This poem became the center of debate in daily German politics for weeks and, even more seriously, provoked a diplomatic issue between the states of Germany and Turkey. The media asked many legal scholars for their opinions regarding the limits of free speech, and not surprisingly, individual scholars used radically different arguments to justify their views.

For instance, one legal scholar favored the interpretation that the whole situation of the satire should be seen in relation to the bigger picture: Böhmermann, so his defenders said, used harsh words, indeed, but this display of disdain for the President of Turkey is not supposed to be seen as isolated; rather, it should be seen as highlighting a theme that was occurring in many forms of media, from cinema to books. This view is also favored by the administrative tribunal of Berlin in it’s decision whether the poem can be read out loud in front of the Turkish embassy in Berlin. This was prohibited by the court with the reference to the mentioned argument that poem singularly is an insult and not protected by free speech.

The court decision proves that the poem itself is a criminal act in the form of an insult, without a doubt.

This court decision proves that the poem itself is a criminal act in the form of an insult, without a doubt. But Böhmermann’s use of a clearly insulting poem shows us the scope of, and the lack of limitations on, free speech in Germany. This leads us to the interesting question: should an evident illegal act as codified in criminal codes in the majority of legal systems around the world become legal simply by announcing beforehand that your intention with your future actions is to insult someone? What’s more, if we take a look at the big picture, then the whole preparation and background of the poem – aside from the content – must be taken into consideration.

One consideration is that Böhmermann stated that this part of the show and poem was directed at the President of Turkey by naming him. Another consideration is that Turkish subtitles of the poem were displayed on the screen while Böhmermann read the poem aloud. The announcement that free speech is provided under the German constitution was not made, nor was the fact that there exists a German legal requirement of “showing the limits of free speech“presented in the Turkish language, so that an intention to inform the Turkish president about these legal subtleties can’t be seen by the moderator. After examining these more subtle attacks that exist outside of the pure content of the poem, it becomes clear that this manifestation of free speech as entertainment must be limited. Böhmermann’s “criticism” had no political dimension, except to unleash vulgar attacks on the person of Recep Tayyip Erdoğan.

It is a legal principle that rights are not absolute. The legal history of the United States provides us with the metaphorical example of “shouting fire in a crowded theater,” which basically means that, under certain circumstances, the freedom of speech is not boundless. With regards to the Böhmermann case, Article 5 paragraph 2 of the the German Constitution explicitly states that free speech finds its “limits in the provision of general laws, in provisions for the protection of young persons, and in the right to personal honour”. Examples of the referenced general laws can be found in Section 103 (Defamation of organs and representatives of foreign states), 130 (Incitement of hatred) or 185 (Insult) of the German Criminal Code. The German Federal Constitutional Court constructed the so-called Schmähkritik so as to limit the freedom of expression in their jurisdiction. This type of criticism does not intend an intellectual discussion and, on the contrary, puts the defamation of the person in the foreground.

This is especially the case when the sphere of intimacy is attacked, such as a person‘s sexual life, or human dignity is violated and therefore outweighs, or overrules, the freedom of expression (BVerfG, Beschluss v. 03.06.1987, Az. 1 BvR 313/85). In short, from a legal perspective, the requirements of Section 103 and 185 of the German Criminal Code is compiled so that individuals who behave as Böhmermann has behaved will be found culpable. Erdoğan has already reported an offense which was authorized by the Federal Government. But one of the most difficult things to do within the context of law is to predict a sentence. Two lawyers, three opinions.

Nevertheless, the law is pragmatic and will find a solution. But what about other norms that are non-binding, such as morality?

Nevertheless, the law is pragmatic and will find a solution. But what about other norms that are non-binding, such as morality? Professor Uwe Volkmann from Goethe University of  Frankfurt rhetorically asked in his Verfassungsblog “A rock bottom and one more rock bottom and one more rock bottom” whether the way Böhmermann delivered his poem shall be the way that public discourse should be led in the future. Volkmann warns that society will be stultified if debates are led with jargon à la Böhmermann. The sophistication of public debate should be respected and, in the meantime, he expresses his regrets that decency within discussions has been lost.

Within this context, we should more intensely debate the ethics of art, instead of giving a free pass to anything that is connected to, or claims to be, art. When the incredibly complex act of peacefully living together is taken into consideration, especially in multi-cultural societies, the law should not periodically educate people about what they are allowed to say and what they should keep to themselves in private. Rather, a sense of decency has to be a norm within society. It might be important to recall the categorical imperative of Immanuel Kant which connects morality and law in a utopian but adjusted manner: “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.”